Caballero

*265 Opinion

In Graham v. Florida (2010) 560 U.S. 48 [ 176 L.Ed.2d 825 , 130 S.Ct. 2011 ] (Graham), the high court held that the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to Ufe imprisonment without the possibiüty of parole. ( 560 U.S. at p. _ [ 130 S.Ct. at p. 2030 ].) 1 We must determine here whether a 110-year-to-life sentence imposed on a juvenile convicted of nonhomicide offenses contravenes Graham’s mandate against cruel and unusual punishment under the Eighth Amendment. We conclude it does.

Factual And Procedural Background

On the afternoon of June 6, 2007, 16-year-old defendant, Rodrigo Caballero, opened fire on three teenage boys who were members of a rival gang. Adrian Bautista, Carlos Vargas, and Vincent Valle, members of the Val Verde Park Gang, were rounding a street comer on foot when defendant jumped out of a green Toyota and yelled out the name of his gang, either “Vario Lancas” or “Lancas.” Vargas responded by shouting, “Val Verde.” Defendant began shooting at the group. Neither Vargas nor Valle was hit by the gunfire; Bautista was hit in the upper back, near his shoulder blade.

A jury convicted defendant of…

As the majority recognizes, the United States Supreme Court held in Graham v. Florida (2010) 560 U.S. 48 ,_[ 176 L.Ed.2d 825 , 130 S.Ct. 2011, 2034 ] (Graham) that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Consequently, I concur in the majority’s holding that, consistent with Graham , “sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender’s natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.” (Maj. opn., ante, at p. 268.) In so holding, however, we are extending the high court’s jurisprudence to a situation that court has not had occasion to address.

Recently, the United States Supreme Court addressed a different aspect of this issue: juvenile offenders who commit homicide offenses. (Miller v. *270 Alabama (2012) 567 U.S._[ 183 L.Ed.2d 407 , 132 S.Ct.…

DISCUSSION

In Graham, the 16-year-old defendant, Terrance Graham, committed armed burglary and attempted armed robbery, was sentenced to probation, and subsequently violated the terms of his probation when he committed other crimes. (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2020].) The trial court revoked his probation and sentenced him to life in prison for the burglary. (Ibid.) Graham‟s sentence amounted to a life sentence without the possibility of parole because Florida had abolished its parole system, leaving Graham with no possibility of release unless he was granted executive clemency. (Id. at p. ___ [130 S.Ct. at p. 2015].) The high court stated that nonhomicide crimes differ from homicide crimes in a “moral sense” and that a juvenile nonhomicide offender has a “twice diminished moral culpability” as opposed to an adult convicted of murder — both because of his crime and because of his undeveloped moral sense. (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2027].) The court relied on studies showing that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain…